Application by BP Refinery (Kwinana) Pty Ltd

[2024] FWCA 1950

[2024] FWCA 1950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by BP Refinery (Kwinana) Pty Ltd

(AG2024/1648)

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 11 JUNE 2024

Application for termination of the BP (Kwinana Refinery) MAINTECH 2015 - Maintenance Technicians Agreement

[1]       On 16 May 2024, BP Refinery (Kwinana) Pty Ltd (BP) made an application for the termination of the BP (Kwinana Refinery) MAINTECH 2015 - Maintenance Technicians Agreement (Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (FW Act).

[2]       The Agreement was approved by Commissioner Gregory pursuant to section 185 of the FW Act, on 15 April 2016 and commenced operation on 22 April 2019. The Agreement has a nominal expiry date of 30 June 2019.

[3]       The parties to the Agreement are BP and its employees directly employed in maintenance at the BP Kwinana Refinery (Employees). 

[4]       The Australian Manufacturing Workers Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are covered by the Agreement.  The AMWU and the CEPU were invited by my Chambers to provide their views with respect to the Application.

Legislative provisions

[5] Sections 225, 226 and 227 of the FW Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) provide that:

“225Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)one or more of the employers covered by the agreement;

(b)an employee covered by the agreement;

(c)an employee organisation covered by the agreement.

226     Terminating an enterprise agreement after its nominal expiry date

(1)If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)This subsection covers a termination of the employment of an employee:

(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)because of the insolvency or bankruptcy of the employer.

(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)the employees (unless there are no employees covered by the agreement);

(b)each employer;

(a)     each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)        In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)whether bargaining for the proposed enterprise agreement is occurring; and

(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

227     When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[6]       The Application was made by BP in its capacity as an employer covered by the Agreement. I am satisfied that BP have standing to make the Application.

[7]       The Application was accompanied by a F24C Declaration by Mr Christopher Lynch, the People Relations Manager for BP (Mr Lynch). Mr Lynch declared that as at 16 May 2024, no employees are or will be employed under the Agreement.

[8]       I am therefore satisfied for the purposes of s. 226(1) that the Agreement does not, and is not likely to, cover any employees.

[9]       In deciding whether to terminate the Agreement I have taken into account that on 21 May 2024, Mr Simon Brezovnik (Mr Brezovnik), an ETU Organiser – South West & Kwinana and Mr Alan Lindsey (Mr Lindsey), an AMWU Lead Organiser for Manufacturing, both confirmed that the CEPU and AMWU have no objections to the termination of the Agreement and that there are no employees covered by the Agreement.

[10]     I am satisfied that there are no other relevant matters to take into account pursuant to s.226(5) in deciding whether to terminate the Agreement.

[11]     Having regard to s. 226(1A) of the FW Act, I am satisfied that it is appropriate in all the circumstances to terminate the agreement. It follows that I must terminate the Agreement.

[12]     Pursuant to s.227, the termination will operate from the date of this decision. An order to this effect will be issued with this decision.[1]

DEPUTY PRESIDENT

[1] PR775441.

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